A Centre for Ethics and Social Research, Teaching & Engagement

Politics

It was not long ago that the Abbott government vowed to champion free speech, pledging to amend Section 18C of the Racial Discrimination Act, a section of the act that made almost completely useless speech illegal. This commitment was re-affirmed a number of times, including again in early 2015 after the Charlie Hebdo massacre. It seems however the government’s commitment to free speech is largely selective, actively working to keep the marginalised and powerless out of the debate, happy to gag and attack those who dissent.

The recently introduced Border Force Act has raised the ire of a number of individuals and professional bodies, gaining significant media attention with a possible two year prison sentence for speaking about the conditions in immigration detention. Much has been said about how this will impact on the ability of health professionals to report abuse and advocate for patients, however less has been said about how this will only further silence those who are genuinely voiceless.

Silencing the Silenced

The stories we hear from within detention centres are often told through third parties, with many former employees feeling compelled to speak on behalf of those who could not. For all the noise surrounding immigration detention policies, how many of those voices are refugees or asylum seekers?
Hannah Arendt explored this powerlessness in The Origins of Totalitarianism, she argued that even though human rights are proclaimed to be universal, asylum seekers and stateless persons were left with nothing to protect their rights, effectively in limbo, no longer a member of a community where their rights could be enforced. This precarious situation has often been referred to as “the right to have rights”.

“… but it turned out that the moment human beings lacked their own government and had to fall back upon their minimum rights, no authority was left to protect them and no institution was willing to guarantee them.”

She emphasised how this stripped away the right to make oneself heard and opinions matter.

“The fundamental deprivation of human rights is manifested first and above all in the deprivation of a place in the world which makes opinions significant and actions effective… They are deprived, not of the right to freedom, but of the right to action; not of the right to think whatever they please, but of the right to have an opinion”

Managing and processing the powerless

Immigration detention in Australia compounds this powerlessness by further limiting asylum seekers ability to control their own lives and speak candidly about their circumstances. Andre Dao reminds us that this powerlessness can manifest in asylum seekers gambling on their bodies, a symbolic way to regain some control, to be heard. As Dao puts it “you are no longer a human being with free will. Instead, you’re a problem to be managed, an object to be processed.” Few better statements sum this up than these words recalled by an ex-detainee on a hunger strike who was being spoken to by a department employee.

“You understand that your life is in our hands. Your death is also in our hands because we won’t let you die.”

Although a number of asylum seekers have spoken out over the years, their voices rarely make it to the mainstream. Furthermore there remains the expectation of silence both during and after detention, it is not until permanent residency has been gained and families reunited that many feel safe to speak about their experiences.

Silenced subjects and misinformation

Maintaining this silence is key to maintaining our current approach to asylum seekers. The system has been built around rhetoric and misinformation, from children overboard to the present day. Most people can bark back three word slogans, but fewer could tell you what percentage of the world’s asylum seekers arrive on our shores or begin to explain the trauma and torture many have faced before finding safety.

The voices we most need in our debates around asylum seeker policy in Australia are absent, not only that, they are actively excluded. So as well as threatening professionals with gaol time, the Border Force Act only further ensures that that we never get to hear these stories, it ensures that we don’t know who we are locking up or for what reason.

It’s not obvious how the Border Force Act serves to “stop the boats” or “smash the people smugglers business model”, taking into account the boats stopped a long time ago. In attempting to justify this legislation however, the rhetoric has boiled down to a very familiar means justifying the ends rationale, something we should all be careful of and something where it seems appropriate to leave the last words with Hannah Arendt.

“The crimes against human rights, which have become a speciality of totalitarian regimes, can always be justified by the pretext that right is equivalent to being good or useful for the whole in distinction to its parts.”

News outlets have pounced on a Family Court “order” for parents of a six-year-old boy to not smoke around the child and to limit their alcohol consumption while caring for him. Readers commented that the case represents an unacceptable “intervention by the courts into the personal space of the individual”, and that it was an attempt at “social engineering”.

The idea of a court intervening in family life to prevent what might seem like fairly ordinary activities, such as occasional tobacco smoking or having a glass of wine or two, might seem like evidence of an overreaching “nanny state”. And perhaps it would be if that’s actually what happened – but it didn’t.

It is true, though, that the “right to parent” according to one’s own values and proclivities isn’t actually unfettered. The state can and will intervene in family life in various circumstances.

A definite jurisdiction

State Supreme Courts have powers to make orders under their protective jurisdiction to allow important medical treatment to go ahead if parents won’t consent, for instance. The NSW Supreme Court did exactly that in a 2013 case where a Jehovah’s Witness parent refused a life-saving blood transfusion on behalf of their child.

State agencies can also intercede in family life under child protection laws when a child is at risk of significant harm. This kind of coercive intervention is reserved for serious cases where the child’s basic needs are not being met. And it generally requires much more than a parent who smokes or drinks too much from time to time to trigger intervention.

But child protection laws have also been invoked when parents of a severely overweight boy didn’t go to hospital for treatment, or appropriately manage his diet (the ten-year-old boy later died from heart failure associated with obesity). And when a father, who believed HIV was an invention of pharmaceutical companies, refused to give his child the antiretroviral medication prescribed by doctors.

Not everyone will agree on the limits drawn around decisions parents are allowed to make. But most will agree that the public interest in protecting children means limits must be placed somewhere. And “risk of significant harm” doesn’t seem like a bad starting point.

In addition to child protection laws, the Family Court will intervene in the parenting of children when asked to do so by parents who cannot agree on the relevant decisions themselves. In settling these disputes, the guiding principle is that the court will act to protect the “best interests of children”.

But how do courts interpret this rather wide concept, and where do the limits of personal parental prerogatives lie when a court tries to strike a balance between the strongly held views of parents who bitterly disagree?

The particular case

In the case that has provoked so much comment, the Family Court decided that despite the fact the child’s mother was his primary carer and was “utterly dedicated to the child’s needs”, it would be in his best interests to live with his father.

The Family Court will make parenting decisions when asked to do so by parents who can’t agree on the decisions themselves.from shutterstock.com

The orders were influenced by the mother’s preference for the advice of her naturopath over an accredited medical practitioner, which the court found was to the detriment of the child; her “conscientious objection to vaccination”; and her “clear and unwavering belief that the child obtains nothing from an ongoing relationship with his father”.

The father, on the other hand, appeared to the court to have a better view of the child’s medical needs and was “the parent more likely to support [the child] in his relationship with his mother”.

Among the 45 orders the court made were two proposed by the mother – that both parents be “restrained from smoking in the presence of the child” and that they will refrain from consuming alcohol “to excess”, or at least to the point of being unable to drive, while the child is in their care. The father agreed to these, in a suite of orders in which his interests mostly prevailed.

These are known as “consent orders” – and they’re quite different to coercive interventions under child protection laws. In fact, health-related agreements are becoming a common feature of consent orders in a culture that increasingly values health and wellness, and in which many parents are likely to want assurances from the other that their child will be in a “healthy” environment when not in their care.

These kinds of concessions are negotiated in families every day of the week – “take Harry to the physio”, or “please can we not have pizza again because last time Sam got sick”. In this sense, consent orders reflect familiar family compromises and the parents’ own values – rather than an out-of-control nanny state imposing orders on passive parents.

It’s just that these fairly unremarkable agreements have been written down and stamped by the court because goodwill has evaporated and parents no longer trust each other to honour everyday deals.

The long arm of the law?

Indeed, the most interesting aspect of this case is perhaps not the agreement by both parents not to smoke in front of their child or get so drunk that they can’t drive, but that in determining a child’s best interests, the overriding priority for the court was securing “the benefit to the child of having a meaningful relationship with both of the child’s parents”.

To many people the idea that a father who had never been in a stable relationship with the mother and had little previous involvement with him should be entitled to a relationship with the child to the extent that his mother’s role as primary carer was lost, would seem ludicrous. But the Family Law Act takes the position that a relationship with both parents will, in the absence of risk of harm to the child, be considered paramount.

With regard to smoking and drinking, there was agreement between the parents with the imprimatur of the court – rather than an order being “imposed”. The most serious issue that remained in dispute was the child’s right to a relationship with both his parents – and this was where the court really did impose the values of the Family Law Act.

Otherwise, unilateral state intervention is reserved for much more serious cases where significant harm is in the offing. So, you can still have a smoko while your child is at home without fear of being touched by the long arm of the law.

Politics are all around us, playing out in national, local and even domestic governance. Politics have to do with the polis, the people who make up groups of any kind. In that sense, politics are unavoidable. Our relationships with others always contain a political element. Party politics are a subset of politics in its broad sense. Party politics are partisan, ideologically informed patterns of thought and action that suggest how politics should translate into governance in a way that is consistent with a set of underlying values. They condense around different beliefs in power relationships between governors and governed, in the rights and statuses of the different groups that make up the polis, in the control and dissemination of information, and in the responsibilities of government and individuals towards one another.

Accommodation in the Nauru offshore processing facility.

Party politics is made up of what Gallie termed ‘essentially contested concepts’. No one, for example, disputes the existence of the multitudes of people fleeing poverty, instability, persecution and fear. Nor do they dispute the reality of the moral and practical problems they pose for the countries to which they try to flee. But the agreements end at about this point. Some interpret this mass movement as a challenge to their sense of humanity and to their obligations to observe human rights. Others, while acknowledging the human problems of displacement, feel that local territorial rights and laws take precedence, and that the welfare of the host countries is paramount. Turning unregistered and unscreened refugees (“illegals”) away is, in that ideology, a better and safer and fairer alternative to dealing with them by taking them in.

Australia has been foremost among western countries in ‘turning back the boats’ and in making off-shore detention inevitable for those who do manage the journey, pointing to the success of that policy in preventing drownings and restricting the numbers of refugees who reach Australian territorial waters. By contrast, Italy has done its best to rescue enormous numbers of people fleeing North Africa, and to find some kind of accommodation for them. Neither side can be said to have found ‘the’ answer to a massive humanitarian crisis. Italy’s resources have been overstretched. The Australian mode of management appears to contravene United Nations conventions on refugees.

Party-Politics & the Report into Children in Detention

Into the middle of this dilemma, which is partly political in the broad sense and strongly party political in a narrower sense, came the Report into Children in Detention, chaired by the Australian Human Rights Commissioner, Gillian Triggs. The Report found more than 200 children to be in off-shore or Australian detention under conditions that harm their development and infringe the UN statements on human rights. The Commission’s findings seem to be supported by doctors who have visited the detention centres, and by various leaks from people who have worked in Nauru and Christmas Island. The Australian Government’s response has been to deny the accuracy of the report, to attack Triggs’s integrity, to accuse her of partisan reporting, and to call for her resignation.

The report calls for the early release of children from detention, and for proper acknowledgement of their rights, particularly their rights to grow into reasonable adulthood, equipped with education and some sense of identity and stability. It makes many comments about the suffering of adults, but its focus is on children and the overwhelming impact that violence, insecurity, uncertainty, heat, lack of space and lack of hygiene will have on their lives.

The report does not deal so much with the original party-political decision to turn back the boats. It does take issue with both political parties’ decisions to enforce mandatory detention, and it does so predominantly in the context of the impact of that policy on children.

Triggs & the Ruin of Party-Politics

It makes disturbing reading. Presumably that is why it has provoked such extreme responses from both sides of party politics.

On the right, party politicians and right-wing newspapers have belittled Triggs and accused her of bias against them, of dishonesty and inaccuracy. They question the timing of the inquiry, which began soon after the election of the LNP in 2013. They have recommended imprisonment for anyone who leaks relevant information to the media, such as those who supplied some of the information that Triggs relied upon.

On the left (and in the centre), politicians, commentators and media have called for the report to be taken seriously, for secrecy to be lifted and for legislation to protect refugee children. For these people, the timing of the report is irrelevant because its contents demand some major response. At the same time, those who oppose the present government’s theories and practices have used the report as a lever to destabilise the government’s refugee policies more generally, pointing out that what happens to the children is a consequence of what happens to “illegal” refugees at large.

All these conflicts of interpretation and accusations of dishonesty signal the presence of an essentially contested concept. The big concerns for us are:

That politics in the broad sense have been confused with a much narrower party politics;

That the present government’s refusal to allow access to the detention facilities effectively disables any public debate;

That the punishments threatened against anyone who reveals ‘classified’ information about the centres are Draconian;

That the government’s vigorous attacks on the report and its author suggest that they had a pre-formed notion of what the report should say.

Essentially contested concepts make up a significant part of our ‘political’ lives – they always have and they always will. What is important is the way in which these contests are handled. A totalitarian government will settle them one way; a liberal democracy will try to find another.

Ignoring the Real Issue

What is at stake in this confrontation is not Gillian Triggs’s credibility, but the public perception of its preferred mode of government. Apparently, more than 50% of the population approve the present government’s approach to refugees or believe that it should be more extreme. We can only hope that they understand that Triggs, in her appointed role as Human Rights Commissioner, was writing about children in detention, and that government decisions to discredit her well-supported findings by political force majeur raise serious concerns about the reality of our much vaunted participatory democracy.

Miles was the Founding Director of the Centre for Values, Ethics and the Law in Medicine (1996-2003). He was also the Foundation Professor of Surgery at Westmead Hospital in 1978 and a Co-Founder of the World Association of Hepatic, Pancreatic and Biliary Surgeons (1987). Since 1996, Miles is an Emeritus Professor of Surgery at the Sydney Medical School. At the VELiM, he continues to teach and is directing the Cancer Survivorship Project. Miles interests include Medical Sociology and Biomedical Ethics. He is also a published poet.

The Australian government has commissioned a private consultancy to review the country’s poor organ donation rates. While the review may make some interesting observations, the answer to increasing the rate is already clear: we need to better manage patients nearing brain death.

In 2008, the Rudd Labor government allocated A$136 million to create a nationwide government body called the Organ and Tissue Authority (OTA), and charged it with increasing Australia’s low deceased organ and tissue donation rates.

The initiative failed. After initially increasing rates to our highest-ever of 16.9 deceased organ donors per million population (pmp) in 2013, the rate fell again to 16.1 in 2014. And our year-to-date projections point to a further decrease in this rate for 2015.

Even though there has been a small relative increase in the number of people who have received transplants – 56.3 transplants pmp in 2008 to 58.9 transplants in 2014 – this 4.6% increase has cost more than A$250 million. And Australia’s donation rate remains in the bottom half of developed countries, with a rate less than half that of world-leading Spain.

The OTA’s failure to achieve higher donation levels or to maintain its early improvements raises questions about its strategic approach. We believe there are three key areas where its approach differs from world’s best practice.

1. A focus on donation after cardio-circulatory death has decreased the number of organs available for transplant

The kinds of deaths that can lead to organ donation are very rare; they typically comprise around two in 100 deaths. There are two main kinds of “eligible” deaths. The first, and most common, is donation after brain death. People who are brain dead can normally donate many organs because even though their brain is dead, their heart continues to beat and their organs remain viable for transplant.

The second is donation after cardio-circulatory death, which is donation after the donor’s heart stops beating under controlled conditions in hospital. Because circulation has ceased, the number of organs able to be retrieved is normally fewer than that following brain death; they donate, on average, 1.5 times fewer organs than brain dead donors.

Under the OTA, Australia’s level of donation after brain death has increased by 4.5% (from 11.04 pmp donors in 2008 to 11.54 pmp in 2014), while donation after cardio-circulatory death has increased by 422% (from 1.08 pmp in 2008 to 4.56 pmp in 2014). This picture is completely different to countries with world-leading donation rates, all of which have greatly improved their donation after brain death rates relative to their donation after cardio-circulatory death rates.

The OTA’s focus on donation after cardio-circulatory death may well have come at the expense of donation after brain death. And this has potentially reduced the number of organs available for transplantation. While technological advances, including “re-animation”, will likely reduce barriers to organ retrieval from non-heart-beating donors, changing the focus from donation after cardio-circulatory death to donation after brain death still represents the most effective way for improving organ donation rates in this country.

2. Publicity campaigns to increase public support for organ donation have wasted resources and are unlikely to achieve significant long-term benefit

It may sound counter-intuitive but high organ donation rates don’t correspond with public support for organ donation. In fact, many countries with the world’s highest organ donation rates have among the lowest public support for donation, which suggests public education campaigns are unlikely to significantly improve organ donation rates.

But each year the OTA spends significant resources trying to increase community awareness through advertising, public relations and merchandise. These efforts include “Have you had the chat that saves lives,” the DonateLife Corporate Partnership Program and other public outreach campaigns.

While such campaigns may have high public, media and political profile, there is little evidence they directly influence organ donation rates.

It’s noteworthy that many world-leading donor countries, including Spain (which has approximately twice Australia’s population), provide considerably less financial support for their equivalent national organ authorities. In 2015 the Spanish ONT – Spain’s equivalent of the OTA – received the equivalent of A$5.66 million for its total funding, whereas the OTA has a budget of approximately A$40 million. Spain’s donation authority has little to no budget for advertising, public relations or marketing and relies primarily on systematic organisation of the health-care system to support organ donation.

3. Focusing on consent to donation doesn’t yield the same benefit as early identification of potential donation after brain death donors

Australia’s 2014 consent rate (the percentage of families who give their consent to donate their loved one’s organs) of 61% is almost identical to that of France and similar to many other countries with world-leading deceased organ donation rates. Clearly, while consent plays an important role in the success of any organ donation program, it’s not the main determinant of whether a country achieves high organ donation rates.

Politicians, policymakers and transplant advocates have also raised the prospect of making it impossible for families to veto a potential donor’s expressed wish to donate their organs. But this may be counterproductive. It may increase family distrust and alienation regarding donation. And it’s unnecessary as virtually all countries with world-leading organ donation rates allow families to veto organ donation.

In fact, there’s only one factor that determines whether or not a country will have a high deceased organ donation rate and that’s how often it treats critically ill patients until they reach brain death. International data suggests it’s impossible to raise organ donation rates to more than 20 donors pmp population without implementing effective programs that focus on effectively identifying critically ill patients who may be approaching brain death.

Increasing donation after brain death

Australia has struggled to increase its deceased organ donation rates for more than 25 years. To achieve better rates, the OTA must shift its focus away from public awareness campaigns and instead focus on improving effectiveness in early identification of critically ill patients who are likely to become brain dead.

The conditions that lead to brain death are just as prevalent in Australia as they are in other leading donor countries. Indeed more Australians die from traumatic brain injury – the primary cause of death for donation after brain death donors in Australia – than in many other world-leading donor countries. This indicates the potential for Australia to achieve world-leading organ donation rates is real. The clinical identification of brain death must, of course, go hand in hand with appropriate, timely and sensitive discussions with a patient’s loved ones.

It is up to the OTA to lead on this potential and help the Australian medical community identify cases of brain death more effectively, and increase the number of organs being donated.

On the 25th May 2015 the Royal Australasian College of Physicians (RACP) called on the Australian Government to end mandatory detention and release asylum seekers from offshore processing centres. President of the RACP, Laureate Professor Nicholas Talley outlined the College’s Refugee and Asylum Seeker Health Position Statement, which calls for:

more rigorous health assessments for asylum seekers on arrival;

better access to healthcare for asylum seekers and refugees in the community;

increased support services for refugees; and

an immediate end to mandatory detention and the release of all asylum seekers into the Australian community.

Physicians and health care professionals have witnessed first-hand the trauma of asylum-seekers in detention and have repeatedly made public the insufficient medical care available in these facilities. Professor Talley states that “Our Fellows have been inside the detention facilities. We have treated refugees and asylum seekers during their detention and after their release into the community…These people are not numbers, they are our patients.”

A time to boycott?

In September 2014 the Medical Journal of Australia published an article questioning whether the asylum-seeker policy and conditions were so bad that health professionals should boycott working in them. This article was widely reported in the mainstream media and raised awareness of the ethical and medical compromises forced upon health professionals.

As others have argued, however, while a targeted boycott campaign should be considered, refusing to provide medical care to asylum seekers would only harm the already harmed. health professionals have an ethical obligation to their patients. As Professor Talley notes “we are duty bound to speak on behalf of our patients – especially since their human rights are increasingly seen as optional.” And it may be only when health professionals see for themselves the conditions in which asylum seekers are kept, and the standards of health care they receive, that they will be motivated to speak out against injustice and advocate for better and more humane care.

Time to divest

Compounding the ethical and medical harms resulting from mandatory detention is the fact that the Australian Government spends $3.3 billion a year to maintain this policy. This money is used to pay contractors and publicly listed companies to run and operate detention facilities.

Of these, the greatest beneficiary is Transfield Services. Transfield Services’s share price spiked after it was awarded a new contract to run the detention facilities on Manus Islands. Although the share price soon declined, mandatory detention makes companies like Transfield Services appear like a good investment option.

The superannuation fund, HESTA, invests in Transfield Services. At present HESTA is a significant shareholder in Transfield Services.[1] Considering that HESTA is the superannuation for the health and community services industry it is troubling that they are using the retirement savings of physicians, nurses, allied health practitioners and social workers to invest in a company that profits from the mandatory detention of asylum seekers.

Fifteen of Australia’s peak health organisations have publicly condemned the Australian Government’s asylum-seeker policy. Yet, many of the members of these organizations may unwittingly be financially entangled with the very system they condemn. Rather than calling for health professionals to boycott working in detention centres, there is a campaign for health professionals with their super with HESTA to call on HESTA to divest from Transfield Services.

A multi-pronged strategy is needed to resist and disrupt the detention industry. Political and ethical arguments are essential to convince politicians and the public that mandatory detention should be abandoned. However, it is also important to recognize that detention is a business – that profits and financial gains are being made through the asylum seeker polices and that we may be unknowingly supporting and profiting from these businesses and policies ourselves.

Prime Minister Tony Abbott’s claim this week that people living in remote communities were making a “lifestyle choice” that taxpayers shouldn’t be obliged to fund was not just the result of an unguarded moment. Rather, the phrase reveals an underlying view that social circumstances are the responsibility of individuals, rather than societies.

Commentators as well as Abbott’s top advisers on Indigenous affairs were quick to criticise the characterisation. Others suggested it was just another prime ministerial gaffe that shouldn’t distract us from the real issues.

Abbott is infamous for his gaffes and “dad jokes”, but this was not one of those moments. A day after he made the remark, the prime minister defended his use of the phrase on the Alan Jones Show.

A report on the refugee detention centre in Nauru by five independent clinical experts posted online by The Guardian on Friday paints a bleak picture of life on the island, particularly for children. But why should we care about how these people are being treated?

The report describes the now-familiar wretched conditions of refugee detention. Tents that leak in the rain and become unbearably hot and humid by 10am. Burning white rocks underfoot, little natural shade, dust everywhere, only electric fans for cooling in most areas of the camp.

Mosquitoes that prevent sleep and may carry diseases. Overwhelming boredom. And the hopelessness, helplessness, frustration and despair that accompany radical uncertainty about the future.

The authors detail the effects of this environment on the physical and mental health of asylum seekers. And, not unexpectedly, they recommend changes to the detention centre. This implies, of course, that current conditions should change; that the damage we are doing to these adults and children is unacceptable.

But the Australian government disagrees. It claims current policy is justified because it prevents asylum seekers from dying at sea. Let’s assume for a moment that this is truly the purpose of offshore mandatory detention. The goal – preventing deaths – is worthy, but what means are justified to reach it? Continue reading →